Can Etta and Barry block Marcos’ burial?

SHOULD ABSTRACT, broad language in our Constitution block the burial of former president Ferdinand Marcos in the Libingan ng mga Bayani—without a more specific law?

A former chair of the Commission on Human Rights and a martial law victim, Etta Rosales, thinks so. Ahead of the Aug. 24 and 26 hearings, Supreme Court watchers will focus on her petition, written by former Akbayan representative Barry Gutierrez III and lawyers Ma. Concepcion Mendoza Baldueza and Darwin Angeles. Forget other leftists who repeatedly file baseless Supreme Court cases as publicity stunts.

Our 1987 Constitution is painfully verbose, with self-contradictory aspirational statements on everything from nuclear weapons to sports. Because Philippine legal education is overly literal, memorization-oriented and bar exam-focused, we accept taking a single word from our lengthy Constitution and stretching it as far as one can.

This led to bold judgments in the 1990s. The 1993 Oposa case allowed unborn generations of Filipinos to question logging licenses, using a constitutional provision on balanced and healthful ecology. The 1997 Manila Prince Hotel case blocked the historic hotel’s sale to a foreign group due to a provision of preference for Filipinos.

The 1997 Tañada case, however, rejected blocking the Philippines’ accession to the World Trade Organization due to a provision on an independent national economy.

In the 2010s, we treat these long-winded provisions as guiding principles, and ask petitioners to base their claims on more specific laws that flesh out these principles.

The 2013 Reproductive Health Act hearings reprised this debate. Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Justice Marvic Leonen thumbed down vague claims that the Constitution prohibits contraception. They emphasized that a court is not an arbiter of morality, theology, technology or population statistics.

In the 2015 Torre de Manila hearings, Justice Francis Jardeleza proposed that the building violates a constitutional provision on conserving cultural heritage. Carpio questioned how one would know where not to build, as the alleged prohibition is based on a single word in the Constitution.

Gutierrez now raises the stakes and argues: “It is not a mere burial. It is, on the contrary, a complete reversal of the very policy that forms part of the core of the Constitution—that Marcos was a dictator guilty of numerous abuses, and that his like must never again be allowed to hold power over Filipinos. … It takes away the very historical basis on which so much of our present Constitutional order was anchored, by design.”

It is well documented that the 1987 Constitution was drafted to reject martial law. Gutierrez thus argues that the burial undermines a constitutional provision that educational institutions should foster “appreciation of the role of national heroes in the historical development of the country” and other provisions on “full respect for human rights,” “youth patriotism and nationalism,” “integrity in the public service” and “prohibit political dynasties.”

Gutierrez further posits that the burial would violate the principles of the fundamental International Covenant on Civil and Political Rights. The burial would undermine the required “full and effective reparation” to victims of systemic abuses, recognition of the abuses that took place, and the prevention of impunity in future abuses.

As a secondary argument, he cites how Republic Act No. 289 created the Libingan: “To perpetuate the memory of all the Presidents of the Philippines, national heroes and patriots for the inspiration and emulation of this generation and of generations still unborn.” He argues Marcos is not worthy of emulation.

Further, Armed Forces Regulation No. 131-373 disqualifies those convicted of an offense involving moral turpitude or dishonorably discharged from service from burial in the Libingan. Gutierrez argues that Marcos should be treated as disqualified given how various laws and even foreign court decisions state that he was forced out of office, amassed ill-gotten wealth and committed countless human rights abuses.

As compelling as Gutierrez’s appeal to the spirit of the law is, I hesitate to go so far beyond its letter. People need to know what the law says, what is prohibited and what is authorized. Law is beautiful philosophy when we talk of human rights and social justice, but it must be practical and clear in most contexts.

Today’s students are wary of old decisions like Oposa and Manila Prince Hotel because our verbose Constitution can be used as a pretext for just about anything. With such an open-ended approach to law, why bother passing a law in Congress when one may petition the Supreme Court for an instant solution?

It is ironic to short-circuit democratic process arguably to save democracy by stopping Marcos’ burial in the Libingan.

I am likewise wary of invoking the purpose of RA 289. Judges should not be deciding who is worthy of emulation. If one accepts this argument, law could likewise be bent to do anything. Our Securities Regulation Code, for example, prescribes a “socially conscious free market” and “democratization of wealth,” but these aspirations should not trump finance principles in regulating financial transactions.

Arguing over AFP Regulation No. 131-373 is pointless because the President as commander in chief may change it anytime.

Gutierrez has at least uplifted the Aug. 24 hearing into a credible discussion. He will likely try to persuade Jardeleza, the Court’s greatest liberal and progressive who called for broad interpretations of constitutional principles in recent hearings. It will be fun to see how far the Court will go.

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